Right of audience

This article stems from a judgment given by me in York County Court earlier this year. The defendants fell into arrears with their mortgage and the claimant lender commenced possession proceedings. At the hearing the claimant purported to be represented by K, who described himself on my advocate’s pro forma as an ‘agent’.

Paragraph 5.1 of practice direction 39 states that: ‘At any hearing, a written statement containing the following information should be provided for the court:

the name and address of each advocate;

his qualification or entitlement to act as an advocate [emphasis added]; and

the party for whom he so acts.’

The person representing the claimant simply wrote ‘agent’. On enquiry I was satisfied that he was not qualified as a solicitor or a barrister and had no other entitlement to appear before the court as an advocate. I therefore refused to hear him and the claim was struck out.

The claimant’s solicitors applied for that order to be set aside, and the matter relisted, on the grounds that: ‘The claimant sent representation to the hearing on 28 January 2010 and the representative did have rights of audience.’

The claimant’s application notice said: ‘It is the claimant’s procedure to instruct an advocacy agent to attend possession proceedings on its behalf. In this matter the claimant’s solicitors instructed X Limited to attend the hearing. The agent they sent was K. K is self-employed and is a contractor to X. He has received a Bachelor of Law and has completed his Legal Practice Course. Copies of his certificates are attached to this application. Rights of audience are defined by section 27 of the Courts and Legal Services Act. In this matter, the relevant clause is section 27(2)(e): "A person shall have a right of audience before the court in relation to any proceedings only in the following cases:

(e)(1) he is employed (whether wholly or in part) or is otherwise engaged to assist in the conduct of litigation, and is doing so on the instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

(2) the proceedings are being heard in chambers in the High Court or the county court and are not reserved family proceedings."’

It continued: ‘K was engaged to assist in this litigation and was doing so under the instructions given by S Solicitors. S are a qualified litigator as defined by section 27(9) of the Courts and Legal Services Act 1990. The possession hearing was also taking place in chambers at county court. As such, the claimant’s representative did have rights of audience…’

The issue of whether an ‘agent’ has a right of audience is an important point which regularly arises in the county courts.

The application before me referred to a repealed statute. The Courts and Legal Services Act 1990 was repealed and replaced by the Legal Services Act 2007 on 1 January 2010. The 2007 act provides for a new regulatory framework for the provision of legal services. Part 3 lists and defines reserved legal activities and who may carry them out. The regime is not profession-based – for example, barrister or solicitor – but qualification-based. Approved regulators, whose functions are set out in part 4 of the 2007 act, also in force from 1 January 2010, authorise and regulate persons to carry on reserved legal activities. Advocacy is, of course, a reserved legal activity.

Before the Courts and Legal Services Act 1990, barristers enjoyed rights of audience in all courts for all proceedings, subject to regulations of the General Council of the Bar, but solicitors, though having rights of audience for all proceedings in the county courts and magistrates’ courts, had only restricted rights of audience in the High Court. One of the aims of the 1990 act was to make it possible for solicitors to obtain rights of audience in the higher courts by completing prescribed courses of training and assessment administered by the Law Society.

With the Access to Justice Act 1999, the means by which the Law Society could regulate the granting of higher rights of audience to solicitors was changed. It was also made possible for other professional groups, apart from barristers and solicitors, to grant rights of audience to their members for particular purposes. The Institute of Legal Executives, Chartered Institute of Patent Agents, Institute of Trademark Attorneys and Association of Law Costs Draftsmen have so far taken advantage of this.

The Legal Services Act 2007 established the Legal Services Board. One of its functions is to regulate the professional bodies that are permitted to grant rights of audience. All of the approved regulators have strict disciplinary processes. For example, a barrister who misbehaves can be disbarred, a solicitor can be struck off the roll of solicitors, and so on.

This disciplinary process for each of the professions concerned is of crucial importance. Advocates have duties to the court as well as to their client. Courts need to have confidence that advocates appearing before them will carry out their duties to the court, and will face sanctions if they do not do so.

One problem with unqualified advocates is that there is no disciplinary process to keep them in check and ensure they act appropriately. That is one reason why the law is as strict as it is. So anyone appearing as an advocate in a court must be qualified or entitled to do so.

In section 12(1) of the 2007 act, the term ‘reserved legal activities’ is used to describe particular activities, including the exercise of a right of audience. A right of audience means the right to appear before and address a court, including the right to call and examine witnesses. Section 13(1) states that the question of whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of the act. Section 13(2) states that a person is entitled to carry on a reserved legal activity where: ‘(a) the person is an authorised person in relation to the relevant activity; or (b) the person is an exempt person in relation to that activity.’

In this context, an authorised person is a person able to exercise rights of audience, whether limited to particular courts and proceedings or unlimited, in accordance with the regulations of an authorised body under the statutory scheme.

An exempt person, see section 19, is a person determined as such by paragraph 1 of schedule 3 to the 2007 act. By this provision, the 2007 act recognises, as did the 1990 act, that, in certain circumstances, a person who is not authorised in accordance with the statutory scheme to exercise rights of audience may nevertheless do so.

The combined effect of sections 13 and 19 and paragraph 1(7) of schedule 3 to the 2007 act is to provide that, in certain circumstances, a person whose work includes assisting in the conduct of litigation is an exempt person for the purpose of exercising a right of audience.

Before the 1990 act, solicitors’ general rights of audience in both the High Court and the county courts when the court was sitting in chambers, extended to their responsible representatives, in particular, to solicitors’ clerks and legal executives. For many years persons employed by solicitors have been entitled to appear before the court when the court is sitting in chambers. This is recognised by long usage and it was not the purpose of the 1990 act, nor is it of the 2007 act, to restrict these long-established rights. But as I have already said, a disciplinary process is integral to a right of audience. If an employee of a solicitor misled the court or misbehaved, the firm which employed him would be liable and could be held accountable in a wasted costs order or in some other appropriate way. Furthermore, the Law Society has power to direct that no solicitor can employ a certain person where the person has been found guilty of inappropriate behaviour. So there is a disciplinary process that extends not only to solicitors, but also their employees.

With a self-employed agent there is no employer or disciplinary body to which he can be reported if he were to behave in an inappropriate way.

Courts still have power to grant a right of audience to a particular person for a particular case. The leading case here is D v S (Rights of Audience) [1997] 1FLR 724, where the Court of Appeal held that the 1990 act gives the court a discretionary power to grant a special right of audience in particular proceedings, but this is a power designed to be exercised on a case-by-case basis, it is not a way of granting rights of audience generally. The statutory scheme for granting rights of audience, formerly set out in the 1990 act and now found in the 2007 act, is designed with a view to maintaining the proper and efficient administration of justice. So, although there is a discretionary power, it is a limited one. Lord Woolf, Master of the Rolls, said in D v S that it would be, ‘monstrously inappropriate’, and totally out of accord with the spirit of the 1990 act, having regard to the stringent requirements as to training and conduct imposed upon those who gain normal rights of audience from authorised bodies, to grant rights of audience to unqualified persons who have set themselves up as providers of advocacy services, whether for reward or not. This applies with at least equal force to the 2007 act.

The courts should pause long before granting rights of audience to individuals who do not meet the stringent requirements laid down in the statutory scheme now found in the 2007 act, and who make a practice of seeking to represent otherwise unrepresented parties.

Some unqualified persons who offer advocacy services describe themselves as ‘solicitor’s agents’. This is a misleading term in this context because it implies an authority which does not exist. ‘Solicitor’s agent’ is not a term used in the 2007 act. The practice of solicitors using other solicitors as local agents is well-established. Rather than attend a short hearing in a distant city, a solicitor would instruct a solicitor in that city to attend as an agent. This practice is still recognised in rules of court (see, for example, rule 38.3 of the Supreme Court Rules 2009). Indeed, every solicitor who had a litigation practice outside London used to have a firm of solicitors in London who acted as their London agents. The key point in all this is that the agent of the solicitor is also a solicitor or an employee of that solicitor for whom the solicitor is responsible.

I found as a fact that K was engaged in the provision of advocacy services and only advocacy services.

It is a sad fact that many persons who are partly qualified as a lawyer cannot obtain a position either as a trainee solicitor, or as a pupil in barristers’ chambers. Such persons are partially qualified, and some seek employment in one form or another in the legal profession. The irony is that one reason why training contracts and pupillages are difficult to find is that there are so many unqualified persons undertaking or purporting to undertake tasks which would normally be undertaken by trainee solicitors or pupils. Either someone is qualified as a solicitor or a barrister or they are not. Being an unqualified person, K was not subject to a disciplinary process of any profession. He was certainly not an authorised person within section 18 of the 2007 act, and I found as a fact that he was not an exempt person within section 19 and schedule 3.

Consequently, I was driven to the inescapable conclusion that K did not have a right of audience. This would apply not only to K but to all other agents offering advocacy services in the same way. They are reminded that it is now a criminal offence to carry on a reserved legal activity (including an activity in the form of the exercise of a right of audience); see sections 14 to 17 of the Legal Services Act 2007. No court can permit a criminal activity to take place before it.

District Judge Hillsits at Scarborough and Leeds County Courts. He is a member of the Civil Procedure Rules Committee